Court-Martial Trial Practice Blog

Can there be a foul but no harm

August 16, 2017 | The Law Office of Philip D. Cave

In British football, a player can commit a foul which is technical and the other team gets a free kick, and everyone keeps playing. More serious fouls can result in a yellow card (two in a game and you are off the field) or a red card which means immediate removal from the field. Well, that’s now the rule for suppression motions in the military.

Why? On May 20, 2016, there was a change to Mil. R. Evid. 311. Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.

In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence. They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3). This was a government appeal of the military judge’s ruling to exclude evidence. So the court remanded the case back to the trial judge so the parties and judge do get a do-over.

More cases coming?

August 14, 2017 | The Law Office of Philip D. Cave

The military already has rules and regulations about membership in certain hate groups. The tragic events at Charlottesville are likely to garner more attention to the issue of military personnel and hate groups.

From Task & Purpose.

James Alex Fields Jr., the 20-year-old Army basic training wash-out accused of running down counter-protesters demonstrating against hate groups in Charlottesville, Virginia, may not have been the only U.S. military veteran marching under the banner of white nationalism this weekend, Splinter reports.

Pending change to federal rules of evidence

August 12, 2017 | The Law Office of Philip D. Cave

As you know, Military Rule of Evidence 1102 provides that,

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

DNA may be too good and convict the innocent

August 5, 2017 | The Law Office of Philip D. Cave

There is increasing attention to the possibility that DNA “evidence” at the scene of an alleged crime is just too good and may implicate the innocent.

Touch-trace DNA is the issue.

Here is an interesting discussion that may help form an argument to exclude DNA evidence or address it with the fact-finder at trial.

An interesting justification for a Brady violation

August 5, 2017 | The Law Office of Philip D. Cave

A major piece in the New York Times magazine by Emily Bazelon dissects the conviction of Noura Jackson for the murder of her mother.

The accused’s DNA was excluded as a match for any of the three DNA profiles found at the scene and there was no physical evidence linking the accused to the killing.

The accused was convicted on circumstantial evidence.

A resource for Virginia’s veterans

August 4, 2017 | The Law Office of Philip D. Cave

Virginia Military and Veteran Legal Resource Guide

Attorney General Mark R. Herring has created the Virginia Military and Veteran Legal Resource Guide, a new tool to help Virginia servicemembers, military families, and veterans understand the unique legal protections, rights, and resources available to them under the law. Volunteer attorneys from the Office of Attorney General spent more than a year developing the new guide, which will be distributed in hard copy and electronically in conjunction with the Virginia Department of Veterans Services, veterans’ service organizations, and more.

CAAF grants and sets-aside, with a remand

July 26, 2017 | The Law Office of Philip D. Cave

In my case of United States v. Lightsey, the CAAF has set-aside the decision of the Air Force Court of Criminal Appeals, and has ordered a new review to consider the impact of United States v. Hukill.

Hukill applied the court’s decision in United States v. Hills to military judge alone trials.

A possible new development with vet’s and PTSD

July 26, 2017 | The Law Office of Philip D. Cave

Military veterans keep secrets from the battlefield. But retired Marine Richard Cachola’s refusal to reveal details of a traumatic experience he had while serving in Iraq — and the mental health treatment he received as a result — put him at risk of losing custody of his children.

“My PTSD has no relationship to my ability to be a father,” Cachola said, after declining to provide court-ordered mental health records of his PTSD history in family court.

Cachola’s case reflects why child-custody disputes can be complicated, especially if one spouse has been diagnosed with a mental illness resulting from war. Family court judges must balance a parent’s right to privacy with the best interest of the children involved.

Two new Navy instructions of interest

July 25, 2017 | The Law Office of Philip D. Cave

Sexual Harassment Prevention & Response Program, OPNAVINST 5300.13.

Equal Opportunity Program, OPNAVINST 5354.1G.

Challenge to sex offender registration in Pennsylvania

July 20, 2017 | The Law Office of Philip D. Cave

As I have argued, for some time in courts-martial, sex offender registration is effectively a punishment in today’s society–despite what legislators and courts say. Well, now we have an interesting decision from the Pennsylvania Supreme Court, in a 3-1 decision, about ex post facto changes to SOR.

[T]he provisions of the state’s sex offender registration law (SORNA) [are] unconstitutional under the state and federal constitutions, according to the majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The bottom line here for me is that various courts are now holding that SOR is punitive. I argue that as the reason an accused should be able to raise SOR requirements in sentencing and that the members should not be given a “Talkington” instruction.